Home Affairs CommitteeSupplementary written evidence submitted by the Immigration Law Practitioners’ Association (ASY 39a)
Following my giving evidence to the Committee on 2 July 2013 you wrote to follow up on the question asked by the chair about the proof that LGBT asylum seekers are asked to provide by the Home Office.
I attach a note by ILPA members the UK Lesbian and Gay Immigration Group that I trust you will find helpful.
I am aware that you have also received evidence from ILPA member S Chelvan, a barrister at No 5 chambers. His “Difference, Shame, Stigma, Harm” model has received considerable attention as a way of examining the evidence in these claims. There is a helpful brief introduction to the model in the summary note of the International Association of Refugee Law Judges, European Legal Network on Asylum and UNHCR Informal Meeting of Experts on Refugee Claims relating to Sexual Orientation and Gender Identity that took place in Bled, Slovenia on 10 September 2011138.
The difficulties faced by LGBT persons seeking asylum are just one aspect of problems encountered by persons seeking asylum more generally when it comes to establishing that they are telling the truth. This is dressed up in the word “credibility,” perhaps because it is easier to say to someone “You lack credibility” than to say “You are telling lies.” The use of the amorphous term can also mask no accusation of a specific lie having been made. The vexed question of truthfulness or “credibility” has been the subject of UNHCR’s CREDO project and also of the work by Amnesty International on which you took oral evidence from Ms Jan Shaw.
For the most part the answer to disputes about credibility lies in a correct application of the standard of proof. The standard is that of a “reasonable degree of likelihood139.” See the cases of Ravichandran [1996] Imm AR 97 and Karanakaran [2000] Imm AR 271. See also the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees140.
The Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted141 (the “Qualification Directive) also addresses the standard of proof in Article 4.
Section 8 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 attempted to prescribe an approach to credibility and the inferences to be drawn from the timing of the claim, the presentation of a false document etc. In SM (Section 8: Judge’s process) Iran [2005] UKAIT 00116 the Secretary of State appealed on the grounds that section 8 should be the starting point for an assessment of credibility. The Asylum and Immigration Tribunal disagreed:
10. In our judgment, although section 8 of the 2004 Act has the undeniably novel feature of requiring the deciding authority to treat certain aspects of the evidence in a particular way, it is not intended to, and does not, otherwise affect the general process of deriving facts from evidence. It is the task of the fact-finder, whether official or judge, to look at all the evidence in the round, to try and grasp it as a whole and to see how it fits together and whether it is sufficient to discharge the burden of proof. Some aspects of the evidence may themselves contain the seeds of doubt. Some aspects of the evidence may cause doubt to be cast on other parts of the evidence. Some aspects of the evidence may be matters to which section 8 applies. Some parts of the evidence may shine with the light of credibility. The fact-finder must consider all these points together; and, despite section 8, and although some matters may go against and some matters count in favour of credibility, it is for the fact-finder to decide which are the important, and which are the less important features of the evidence, and to reach his view as a whole on the evidence as a whole.
Granting permission to appeal in in ST (Libya) v Secretary of State for the Home Department [2007] EWCA Civ 24 (12 January 2007), Lord Justice Sedley said
6. Section 8 is a problematic provision on which there is, so far, little case law. I cannot at the moment think of any other statute which seeks to prescribe how a judicial fact-finder is to go about finding facts. In many respects nonetheless Section 8 does no more than rehearse things that a fact-finder will anyway have regard to. But subsection (4) is not quite in that class. It alters the consequence of a failure to seek asylum in a safe third country from removal to that country under the 1990 Dublin Convention to a potential ground for disbelieving the claim when it is eventually made in this country.
7. Neither the intrinsic logic nor the forensic effect of this provision is immediately obvious. The requirement is to take the failure into account but to what purpose and effect is not prescribed. It seems to me arguable that there has to be some logical nexus between the particular failure and its circumstances and the applicant’s general credibility before it can work against him under Section 8. It may not be enough, in other words, to say, as the Immigration Judge has arguably done here, that solely because the applicant has failed to claim asylum in a safe third country when he had a reasonable opportunity to do so he is less entitled than he would otherwise be to be believed about the risks he faces at home.”
Section 8 is not compatible with the principle of judicial independence and should be repealed in the forthcoming immigration bill.
Alison Harvey, General Secretary
ILPA
July 2013
Annex
Note by UK Lesbian and Gay Immigration Group
Since 1993 UK Lesbian & Gay Immigration Group (UKLGIG) has been supporting lesbians, gay men, bisexual, trans and intersex (LGBTI) people to gain fair and equal treatment in immigration law. In 2003 the group’s focus shifted to those who, persecuted in their home countries because of their sexual or gender identity, have escaped to the UK.
Of the 196 countries in the world, there are 76 where homosexuality is illegal—seven having the death penalty142. There are around 30 further countries where it is extremely unsafe to be LGBTI and where the risk of persecution is high.
Only a tiny proportion of LGBTI people persecuted worldwide come to the UK to seek a safe haven, and most come only as a last resort. In 2009 Metropolitan Support Trust carried out research into housing issues specific to LGBT asylum seekers. This research produced the only estimate so far of the possible numbers of LGBT people coming to the UK to seek safety. The report, ‘Over Not Out’, states that a conservative and possibly severe under-estimate of the number of LGBT asylum seekers coming to the UK each year is between 1,300 and 1,800143.
LGBTI asylum seekers are one of the most disadvantaged, under-represented and excluded groups in UK society. Many of those UKLGIG works with have been beaten, tortured or imprisoned, prosecuted and abused because of their sexuality. Almost all of the lesbians, and many of the gay men have been raped and/or genitally mutilated.
Although the system in the UK is difficult for all asylum seekers, LGBTI people face specific difficulties not faced by other asylum seekers—shame and secrecy about who they are, lack of knowledge that their identity is a ground for asylum, lack of support from either their home community or the LGBTI communities, lack of independent evidence about both their identity and about what happens to LGBTI people in their home country and abuse in detention and accommodation provided by the Home Office.
UKLGIG provides quality legal advice, referral to expert immigration solicitors, mental and emotional support and social interaction. The organisation trains refugee support and LGBTI organisations and solicitors. UKLGIG works with MPs and Lords, the Home Office, in the Courts and in conjunction with other NGOs to influence positive change in policy and legislation.
If LGBTI asylum seekers held in detention and fast-tracked through the asylum process are not supported to prepare their case and do not have expert legal representation, their chance of achieving a fair decision is severely jeopardised. UKLGIG provides both telephone support and regular visits to detained LGBTI asylum seekers.
In 2010 UKLGIG produced ‘Failing The Grade’, a report questioning why LGBTI asylum claims had a more than 98% chance of refusal by UK Border Agency (UKBA)144. This led to work with Stonewall to produce a further report ‘No Going Back’,145. These two reports together with the Supreme Court decision on discretion in July 2010146 resulted in pressure on UKBA from the then recently elected government. Subsequently, UKLGIG had extensive input into compulsory training for all UKBA decision makers and into an Asylum Policy Instruction on sexual identity asylum claims147.
UKBA completed the compulsory decision makers training on LGB asylum claims in January 2011. UKBA stated at the time that post the Supreme Court decision, the main issue in decision making is how to assess if the claimant is genuinely lesbian, gay or bisexual. Credibility is therefore the crux of the majority of LGBTI asylum decisions. LGBTI asylum seekers are required to prove their sexual or gender identity. This is frequently a complicated process.
This training encouraged decision makers to understand what sexual identity is and realise that proof of sexual identity is not about sex but about a complete person. It also explained what enquiries to make and how to extract information sensitively.
Some of the issues that UKBA decision makers were trained to investigate are:
- — Unlike other people claiming asylum, LGB asylum seekers seldom have anyone else to corroborate what they are saying. Their statement is therefore their only evidence.
- — In countries where LGB people are despised and under threat, people develop a recognition of their sexual or gender identity over a period of many years and in small and cumulative steps. When and how a person recognised their identity is important in deciding credibility.
- — Thoughts and feelings about this process and about what has happened are important because they are individual.
- — Once people have recognised themselves as LG or B, their story becomes very similar to many others from all over the world. The steps that led them to that recognition and their personal thoughts and feelings therefore become the only things that are individual. Being individual means that a person is more likely to be credible.
- — People should talk about every aspect of their lives not just sexual relationships or why they left.
- — People may have never previously disclosed their identity and will struggle to articulate it especially to authorities.
- — People might be ashamed of who they are and therefore struggle to talk about it. There are other asylum seekers who might be ashamed of what has happened to them, eg women survivors of sexual violence, but no others who are ashamed of who they are.
- — Previous persecution might have included imprisonment by family, the community or the authorities.
- — LGB asylum seekers are commonly survivors of sexual assault, rape or genital mutilation, which they are unlikely to have talked about and might take some time to disclose, especially as it could have been used as a punishment for their identity.
UKLGIG believes these factors mean that preparing information in support of a sexual or gender identity claim takes time and support. The Detained Fast Track process is unsuitable for the majority of LGBTI asylum claims.
UKLGIG supports circa 1,000 LGBTI asylum seekers each year. Almost all of the people the organisation works with who are refused, either by the Home Office or the court, are refused because their identity is not believed.
UKLGIG was pleased that what was at the time UKBA, consulted and took advice from the organisation on how to establish credibility. UKLGIG noticed a genuine improvement in the quality of interviews and decisions after training. However, two and a half years on, there has been a decline in that quality and recently a reversion to inappropriate, invasive and sex-focused questioning and decisions.
UKLGIG is currently undertaking follow-up research to the 2010 report looking again at Home Office decision making. This research is not complete, however, below are some of the findings so far in relation to credibility.
In 17 out of 22 UKBA decision looked at so far, asylum claims were denied because the person was not believed to be lesbian, gay or bisexual. If lesbians and gay men do not mention their sexuality at the earliest possible opportunity, normally the screening interview, this is taken into account in assessing credibility. The sections below explore some of the reasons provided by various decision makers in finding that a person lacks credibility.
Following the criteria set out by the Court of Appeal, decision makers must take into consideration all the material facts of the case, comparing the evidence submitted both cumulatively and together with objective information about the claim and country [1]. UKBA case workers have cited evidence of the following as means of proving one’s sexual identity:
- — knowledge of the legal position of homosexuality;
- — details of relationships in the country of origin and in the UK;
- — how the person first became attracted to same sex partners;
- — when the person first realised that they were gay or lesbian;
- — how the person came to terms with their homosexuality;
- — credible details of gay-friendly places the person has visited in the UK;
- — introspection, self-awareness or uncertainty as to sexual identity, ‘such feelings might be expected to be evident in the experience of a young individual becoming aware of their homosexuality in a homophobic society’ (18 April 2011, Gambia, gay).
Case workers at UKBA have found an asylum claim to lack credibility on the grounds of sexual orientation for a number of different reasons. For example, gay men and lesbians who do not know the full names of their partners or their dates of birth are found to lack credibility.[2] These decisions expose a lack of cultural awareness eg of the numerous cultures where birthdays are not celebrated, or of the need for subterfuge and secrecy in societies where discovery of lesbian, gay or bisexual identity carries extremely harsh penalties.
The inability to recall the names, addresses and the atmosphere of clubs and bars is also cited as a reason, with minor discrepancies going to credibility.[3] In one case, decided in November 2011, the letter refusing asylum to a Nigerian man claiming on the basis of his sexual identity provided the following reason:
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You state that you have not been to any ‘gay establishments’ in the UK and you can not name any famous gay people. Your explanation for this is that you do not drink or smoke and therefore don’t like going clubbing. You state that people would come to you because of your ‘eyes’ and the way you walk. The behaviour that you have demonstrated in the UK is not considered to be indicative of your sexuality, the reason you have given for not going to gay establishments due to not smoking or drinking is not considered reasonable especially given that smoking in clubs in the UK had been banned since the summer of 2007 and whether or not you drank would be a personal choice. Further you claim that people would know that you were gay simply by looking at your eyes and the way you walk is considered to be unfounded and completely subjective and in no way supports your claim to be homosexual. |
In other cases, Home Office case workers have denied claims on the grounds of credibility citing vagueness and inconsistency even where this is not the case. Instead, small inconsistencies are cited in order to find a lack of credibility for the overall claim in what can be termed a snowballing effect.
Further, in at least two of the decisions analysed the case workers have found that the words and terms used damaged a person’s credibility. In the case of a Ugandan man, the refusal letter noted that a homosexual would not use the following terms:
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29 June 2012 |
Case workers also continue to place an emphasis on sexual practice or lack thereof in claims involving sexual identity sometimes passing their own judgment on relationships. For example, in a recent case involving an asylum claim, the decision maker found that “It is noted that your reason for having sexual intercourse with D. was merely to alleviate your stress as opposed to your attraction to D” (04 July 2013). In addition, UKBA refusal letters have not accepted a person to be homosexual where there is a lack of sexual practice.[4]
[1] Karanakaran [2000] EWCA Civ 11.
[2] UKBA decision 3 May 2012, gay man, Ghana; UKBA decision, 24 April 2012, gay man, Uganda; UKBA decision, 14 Dec 2011, gay man, Cameroon; UKBA decision, 29 June 2012, gay man, Uganda.
[3] Ibid, “You initially said that that X club was in Camden Town. Then you stated that it was in Kentish Town. While it is accepted that these locations are very close it is considered that you would be able to disclose full details of this club, if you ever attended it.” Also, UKBA decision, 19 June 2012; UKBA decision, 16 Nov 2011, gay man Malawi; UKBA decision, 18 April 2011, gay man, Gambia; UKBA decision, 31 Jan 2013, gay man, Pakistan.
[4] UKBA decision, 17 Feb 2011, gay man, Uganda, “You confirm that you have had no other sexual encounters at all, at secondary school, at university, whilst working in Uganda or even whilst living in the UK for the last 15 months. You offer no evidence as to your sexual orientation saying that you know “in my heart, in my life”. It is therefore not accepted that you are a homosexual, and as this goes to the very core of your claim, it therefore follows that your claim is rejected in its entirety.”